TMI Blog2022 (1) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... re identical to that of earlier years, we for similar reasons hold no reason to interfere with the order of CIT(A) and thus dismiss the ground of Revenue. Dependent Agent Permanent Establishment (DAPE) in India - computation of profits attributable to PE - AO noticed that assessee had received amounts for supply to Teesta Purulia Project but the entire receipts were not offered to tax - non inclusion of the amounts to tax to which it made the submissions - HELD THAT:- The issue in the present ground is with respect to the. AO attributed the profit to PE @ 50% whereas CIT(A) attributed it to 20%. We find that identical issue arose in assessee s own case in A.Y. 2006-07 to 2008-09, 2010-11, 2012-13 2013-14. The relevant findings of the Co-ordinate Bench of Tribunal in assessee s own case for A.Y. 2013-14 [ 2020 (11) TMI 1032 - ITAT DELHI] . Revenue has also not placed any material to demonstrate that the order of the Co-ordinate Bench of Tribunal in assessee s own case for earlier years has been set aside/stayed/overruled by higher judicial forum. In such circumstances, we following the order of the Co-ordinate Bench for earlier years and for similar reasons, find no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 9,07,91,624/-. Aggrieved by the order of AO, assessee carried the matter before the CIT(A), who vide order dated 29.05.2015 (in Appeal No.318/2014-15) granted partial relief to the assessee. Aggrieved by the order of CIT(A), Revenue is now in appeal before us and assessee has also filed Cross Objection. The grounds raised by the Revenue reads as under:- 1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in holding that the Offshore supplies in respect of Teesta and Purulia projects cannot be taxed @ 10% u/s 44BB of the IT Act. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in holding that the profits that can be attributed to the PE of the assessee should be 20% and not 50% as determined by the AO. 3. On the facts and in the circumstances of the case, Ld CIT(A) has erred in holding that the assessee s income from Teesta and Purulia projects should be taxed on cash basis instead of Mercantile basis. 4. The appellant craves to add, amend, modify or alter any grounds of appeal at the time or before the hearing of the appeal. 5. The assessee in its CO has raised the following groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44BBB of the Act which is the scheme of presumptive taxation, the taxable income has to be computed at the percentage of the turnover of the assessee. He therefore held that 10% of the payments that was received from offshore supplies in respect to Teesta Purulia projects should be considered as taxable income u/s 44BBB of the Act. He thereafter computed the total income from Teesta projects at ₹ 15,570,661/- and for Purulia Project ₹ 3,724,685/-. He also computed income from offshore Purulia Project at ₹ 58,711,918/-. 7. Aggrieved by the order of AO, assessee carried the matter before the CIT(A). CIT(A) following the order of his predecessor for A.Y. 2006-07 2007-08, deleted the addition. Aggrieved by the order of CIT(A), Revenue is now in appeal before us. 8. Before us, Learned DR supported the order of AO. 9. Learned AR on the other hand submitted that issue in the present ground is squarely covered in favour of the assessee by the order of Hon ble Delhi ITAT in assessee s own case for A.Y. 2006-07 to 2008-09 vide order dated 07.01.2020. He pointed to the relevant order placed in the paper book. He therefore submitted that since the facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Aggrieved by the order of AO, assessee carried the matter before the CIT(A). CIT(A) noted that facts in the year under consideration were identical to A.Y. 2008-09. He thereafter upheld the action of AO to the extent of holding Mitusi India Pvt. Ltd. as DAPE but restricted the profit attributable to Indian operation at 20% as held by his predecessor. The relevant observation of CIT(A) are as under: The facts of the present case are identical to the facts of the preceding years. In the assessment year under consideration the AO has considered Mitsui India Pvt. Ltd. as a DAPE and 50% of the gross profit has been attributed to this DAPE. Respectfully following the order of my predecessor CIT(A) for immediate preceding, year 2008-09, I hold that the action of the AO to the extent of holding Mitsui India Pvt. Ltd. as a DAPE is upheld. Further the profit attributable to Indian operations is restricted to 20% as held by my predecessor. This way the profit attributable to Indian operation shall be ₹ 11,42,58,505/- as against ₹ 28,56,46,263 determined by the AO by applying 50% of global profit. I further note that Mitsui India Pvt. Ltd. has been paid a commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower authorities and further submitted that issue in the present ground is squarely covered by the decision of Tribunal in assessee s own case for A.Y. 2006-07 to 2008-09, 2010-11, 2012-13 2013-14. He pointed to the relevant portion of the order placed in the paper book. He therefore submitted that in view of these facts the ground of the Revenue be dismissed. 16. We have heard the rival submissions and perused the material available on record. The issue in the present ground is with respect to the computation of profits attributable to PE. AO attributed the profit to PE @ 50% whereas CIT(A) attributed it to 20%. We find that identical issue arose in assessee s own case in A.Y. 2006-07 to 2008-09, 2010-11, 2012-13 2013-14. The relevant findings of the Co-ordinate Bench of Tribunal in assessee s own case for A.Y. 2013-14 in ITA No.5901/Del/2016 in CO No.28/Del/2017 dated 27.11.2020 reads as under: 4. After hearing both the parties and on perusal of the impugned order and the issues involved, we find that grounds no.1 and 2 in Revenue s appeal and grounds no.3 to 5 in assessee s cross objection are common which has been pointed out by the ld. counsel before us th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to demonstrate that the order of the Co-ordinate Bench of Tribunal in assessee s own case for earlier years has been set aside/stayed/overruled by higher judicial forum. In such circumstances, we following the order of the Co-ordinate Bench for earlier years and for similar reasons, find no reason to interfere with the order of CIT(A) and thus the grounds of Revenue is dismissed. 18. Ground No.3 : During the course of assessment proceedings, AO noticed that assessee has paid commission of ₹ 506,072,924/- to MIPL. The commission on the total sales of ₹ 37,339,380,834/- worked out to 1.35% of the total sales. It was submitted by the assessee that commission was paid to MIPL for support services rendered by it to the assessee and that the same was as per the agreement entered by it with the assessee. The submissions of the assessee were not found acceptable to AO. AO noted in A.Y. 2008-09, the commission payment was allowed at 0.8905556%. He also noted that the commission paid during the year had increased despite decrease in sales as compared to earlier year. He noted that the facts of the case in the year under consideration were similar to that of A.Y. 2008-09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash basis instead of mercantile basis. We find that identical issue arose before the Co-ordinate Bench of Tribunal in assessee s own case in A.Y. 2007-08. The Co-ordinate Bench, in ITA No.4329/Del/2011 order dated 07.01.2020, decided the issue in assessee s favour, by dismissing the ground of Revenue by observing as under: 60. So far as ground of appeal No.3 by the Revenue is concerned, the same relates to determination of income from Teesta and Purulia projects on cash basis instead of mercantile basis. 61. After hearing both the sides, we find the AO applied section 44BBB in respect of onshore supplies and onshore services in computing the income on the basis of amount accrued. We find the Ld.CIT(A) at para 5.3 of the order has discussed the issue and held that as per the provisions of section 44BBB, it is a presumptive module. The relevant observation of the CIT(A) is at para 5.3 of his order. The Id. DR could not controvert the findings given by the Ld.CIT(A). In our opinion, the ld.CIT(A) was fully justified in holding that while computing the presumptive income books of account are not required to be maintained. Therefore, what is received by the assessee durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant observations in the order. He therefore submitted that since the facts of the case in the year under consideration are identical to that of earlier year, the ground be allowed. 33. Learned DR did not controvert the submissions made by Learned AR but however supported the order of lower authorities. 34. We have heard the rival submissions and perused the materials on record. The issue in the present ground is with respect to the treatment of MIPL as Dependent Agency Permanent Establishment (DAPE) of assessee company. We find that identical issue arose in assessee s own case in A.Y. 2006-07. The Co-ordinate Bench for the detailed reasons stated in the order (which for the sake of brevity are not reproduced) concluded MIPL to be not a dependent agent PE of the AE. The aforesaid decision was followed by the co-ordinate Bench of Tribunal while deciding the appeal for A.Y. 2007-08 2008-09. In the absence of change in facts between the year under consideration and that of earlier years, we following the order of the Co-ordinate Bench for earlier years and for similar reasons hold that MIPL to be not a Dependent Agent PE of assessee. Thus the ground of assessee is all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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